The National Labor Relations Board’s New Election Rules: Do they Protect or Undermine Employee Free Choice?

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled, "The National Labor Relations Board's New Election Rules: Do they Protect or Undermine Employee Free Choice?" My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      And today we are fortunate to have with us Aaron Solem, who is a Staff Attorney for the National Right to Work Legal Defense Foundation. After Aaron gives his opening remarks, we will then go to an audience Q&A.

 

      Thank you for sharing with us today. Aaron, the floor is yours.

 

Aaron Solem:  Thank you for having me, and welcome everyone.

 

      On April 1, the NLRB released its final rule regarding changes to its election policies. The final rule addressed three different board policies by allowing employees to secure timely secret ballot elections.

 

      So the title of this talk asks do these rules protect or undermine employee free choice? To spoil the answer, they do protect and significantly enhance employee free choice. Of course, employee free choice is the overriding purpose of the National Labor Relations Act.

 

      Under the Act, employees have the choice to select for themselves their own representatives. They also have the choice to choose no representative at all and get rid of a representative they don't want.

 

Many people wrongly argue the purpose of the NLRA is to fulfill a paid collective bargaining between unions and employers. But the Act is not favor bargaining for its own sake. Bargaining is only favored under the Act if the majority of employees want bargaining. And each of the rules protect that purpose by determining whether or not the employees want the union to represent them in the best way possible, the "gold standard," a secret ballot election.

 

So what are the three rules that the NLRB announced? First, the Board announced that it was ending its controversial blocking charge policy and replacing it with a system whereby the votes are either taken and tabulated or impounded, depending upon the nature of any unfair labor practice charge that's filed.

 

Second, the Board modified its voluntary recognition bar by allowing a window period for employees to call for a secret ballot election after an employer voluntarily recognizes a union pursuant to a card check agreement.

 

Finally, the NLRB modified the way in which it handles election petitions from construction industry employees who work for an employer that has attempted to convert its Section 8(f) recognition into a Section 9(a) majority agreement. Basically, under this rule, the Board will no longer dismiss election petitions from employees unless the union and employer can affirmatively show that the union possessed majority support at the time the employer established the Section 9(a) relationship.

 

So in discussing the specifics of each of these rules, I'll give a bit of background on the rulemaking, discuss the specifics and arguments for and against each rule, and discuss the rule's implementation before taking questions.

 

So as to background, and most of you probably know this, the NLRB is -- it's a New Deal agency that's run by a five-member board appointed by the President and confirmed by the Senate. Throughout most of its history, the Board is never engaged in rulemaking. Most of its decisions are made through adjudication, either through unfair labor practice allegations that are litigated by the parties and the agency's general counsel or through reviews of election decisions made by the agency's various regional directors.

 

The Trump Board majority, however, has taken a different tact. The Board evidenced an inclination to decide some major issues through excessive rulemaking. So far, it announced or completed rules in five different areas essentially where it stated it wants to pursue rulemaking, and I expect it will probably do more in the future.

 

So in August 2019, the Board released a proposed rule that it dubbed the election protection rule. The election protection rule was so named because it was the Board's stated goal to remove barriers created by past boards that hampered the ability of employees to get timely elections.

 

The NLRB has created several bars and blocking policies throughout its long history that primarily prevents employees from securing an election, specifically when they want to rid themselves of a union in what is called a decertification election.

 

So the Board announced it was addressing first the blocking charge policy, then the voluntary recognition bar, then the construction industry exception. So first, the blocking charge policy. If employees want to get rid of a union, they can collect a petition stating they want to have an election. They collect more than 30 percent of signatures from their co-workers. They can file for a secret ballot election with the NLRB. At this point, the Board should conduct the election in about three to four weeks.

 

However, a union can say, "Not so fast." Under the blocking charge policy, a union has the ability to unilaterally halt and delay the election. It can halt and delay the election by filing an unfair labor practice charge that alleges the employer violated the NLRA in some way. At this point, the regions will generally halt holding the elections while it investigates the charge.

 

The election will be delayed even if the charge has no merit or if it's for some picayune violation or minor violation of the NLRA, it doesn't matter. Typically, in our experience, regional directors reflexively block the charge for any reason when a union asks them to.

 

Charges typically delay the election for months and sometimes years if the charge ends up being litigated. And it's a common occurrence, and it happens in anywhere between 15 to 20 percent of decertification elections.

 

And so while the blocking charge policy applies to both the certification elections and certification elections where union is seeking to be recognized in a secret ballot, not surprisingly, it's a tool that's generally a one-way ratchet used primarily by one party, by unions.

 

As part of the rulemaking, the NLRB released a list of elections that had been blocked by unfair labor practice charges filed by the parties. And in total, between 2016 and 2017, the NLRB processed 4,623 election petitions. Of those, and this is according to Member McFerran's dissenting appendix in the proposed rule, only two of those cases involved employers or individuals arguing union conduct prevented a fair election.

 

So unions are the overwhelming beneficiary of the blocking charge rule, and it's used to prevent elections where employees are seeking to oust them through a secret ballot. Now, the blocking charge policy has faced severe judicial criticism over its time.

 

So for example, as far back as 1960, the Fifth Circuit noted, and I'm quoting from the case, "The Board's not relieved of its duty to consider and act upon an application for decertification for the sole reason that an unproved charge of an unfair labor practice had been made against the employer. To hold otherwise would put in the union or put the union in a position where it could effectively thwart statutory provisions permitting decertification when a majority no longer is represented."

 

Other circuits such as the Second and the Eighth have been critical of the policy as far back as the 1970s. More recently, judges on the D.C. Circuit such as Judge Henderson and Sentelle have criticized the use of blocking charges as an unfair delay tactic.

 

So in 2019, the NLRB finally proposed a rule stating that it was revising the blocking charge policy to a vote and impound procedure where the vote would be taken and the results impounded while the ULP charges were litigated. The Board stated that its concern -- or the Board majority stated its concern was that employee rights to a timely election were being violated and that the unfair labor practices that were being filed were not always meritorious but rather used as a delay tactic.

 

And so a number of comments were submitted to the NLRB, and unsurprisingly, they essentially soured the two camps, those largely supportive of the proposed rules and those largely critical of the proposed rules. Of those who were largely supportive of the rule, for the reasons I stated before that they're a delay tactic, a few organizations criticized the NLRB's impoundment rule.

 

For example, my organization, the National Right to Work Legal Defense Foundation, submitted comments stating the NLRB should not impound ballots but rather release the totals immediately. Us and other groups criticized it because it would not necessarily decrease the union's incentive to file blocking charges. Counting the ballots immediately will give parties greater information on whether to settle alleged unfair labor practice charges.

 

And impoundment will create frustration and confusion among employees who have to wait years to see election results. It could be very frustrating to vote in an election and then have the results held up in a box for what could up to be a couple years until the employees find out.

 

In terms of the arguments against the blocking charge policy, in total, there were essentially three main substantive arguments made by the comments who oppose the rule. They claimed that many of the ULPs filed by unions against employers are meritorious and that election should not be held when the outcome could be influenced by illegal employer acts.

 

Second, they argued that the union could be harmed by the election because employees may vote against the union. And if the ULP turns -- or the unfair labor practice charge turns out to be meritorious and there's a rerun election, employees may have already been influenced against the union and been hardened against it by their prior vote.

 

And then three, many commentators argued that the Board's notice of proposed rulemaking, the initial notice, included incorrect statistics, that it inflated the length of time petitions were blocked and the amount of petitions that were actually blocked. This came about because there was a study released on the statistics included by the Board. And it appeared that they had double counted some cases. And so the length of time was perhaps a little shorter than what the Board was claiming.

 

After each of these arguments, the Board's final rule adopted a modified impound procedure and then rejected the various arguments defending the blocking charge policy. The Board responded to each of the three main arguments I just discussed.

 

To the claim that most blocking charges are meritorious, the Board noted that most commentators took an extremely broad view of what counted as a meritorious charge. So for example, former Member McFerran's dissent to the proposed rulemaking included an appendix where she alleged 67 percent of the time, charges were filed that blocked an election where it turned out to be meritorious.

 

However, if you go through her appendix where she lists various meritorious unfair labor practice charges, she includes charges that were settled informally as meritorious. The problem with including those is under a board law, a settlement cannot constitute a mission of finding the fact or adjudication that the charge had merit unless the settlement actually includes a statement that admits the unfair labor practice occurred.

 

Of course, an employer may settle charges for many reasons, the least of which is that it's actually meritorious. They may settle it because they don’t want litigation. They may settle it because they want the election to occur sooner.

 

So when we analyze the list where she claimed 87 out of the 132 decertification cases in 2016 and 2017 were meritorious, out of those 87, 73 were informally settled or withdrawn pursuant to non-board settlements. So if you assume that none of those cases included an omissions clause, essentially, only 14 out of 132 decertification cases that were blocked had merit, which is around 10 percent.

 

Second, in response to the claim that a union could be harmed by an election because employees may be hardened by a vote against the union during an election that needs to later be rerun, the Board correctly noted it holds rerun elections all the time. It's been holding rerun elections since the 1930s. And specifically, in those cases, the Board believes that it sends a positive signal to employees when it reruns an election at an appropriate time after it remedies any unfair labor practice. It's not an uncommon occurrence to see an election rerun once. It's more rare to see it run two or three times, but it certainly can happen.

 

Finally, in addressing the comments that the statistics included in the notice to proposed rulemaking overstated delays, the Board stated that even if it accepts that it may have overstated the number in length of delays, it wasn't relying totally on statistical analysis of the length of delays. And really, it is undisputed that blocking charges cause delays to an election and that there is sufficient anecdotal evidence according to the Board that the blocking charge policy can cause lengthy delays for cases that are non-meritorious.

 

So the NLRB got rid of the blocking charge and replaced it, but what does it replace it with? It replaced it with a modified vote-and-announce and a vote-and-impound procedure. So now, in most situations, votes will be taken, counted and announced, but the results will not be certified until after litigation over the unfair labor practice charge ends.

 

However, there is a small subset of cases where if the allegations challenge the circumstances surrounding the petition, the votes will be impounded. These are the types of situations where unions may allege that the petition was a product of employer support or encouragement.

 

And even if those ballots are impounded, they are only impounded for 60 days past the election unless the general counsel issues a complaint on the charges within that time. Then they continue to be impounded.

 

So to sum up the blocking charge rule, the Board did a very, very good job encouraging employee free choice by getting rid of the blocking charge policy. This ensures that elections happen quickly. It decreases a large incentive for unions to file unmeritorious charges. And it also ensures that employees know the results of the election right away, and it gives parties more information so that they can settle any litigation or continue the litigation, depending on the outcome of the election.

 

The second part of the rule promulgated by the NLRB concerns the voluntary recognition bar. Unions aren't only certified through elections, but they can also be voluntarily recognized through what is sometimes referred to as card check or other informal procedures.

 

Typically, an employer is allowed to confirm majority status on a union through these informal methods if more than 50 percent of the bargaining unit signs cards that demonstrate support for the union.

 

So after the union is recognized, typically the NLRB, or it used to, institute various bars that block the holding of another election. After a secret ballot election, employees can't, for example, employees can't hold an election for another year. But if the union is voluntarily recognized without an election, the bar has often, but not always, been shorter.

 

So traditionally, the NLRB instituted a voluntary recognition bar that barred elections for what it called a reasonable time. So if you were an employee and you wanted to get rid of your union after a card check, the NLRB region could dismiss your petition if it determined that the union had not had a reasonable time to prove itself.

 

So what's a reasonable time? Well, there was a multi-factor test that determined it. If the parties hadn't had enough bargaining sessions, and its bargaining sessions hadn't lasted long enough, they got to bargain more. But if they had a ton of sessions and were very, very close to an agreement, you had to let them finish.

 

So if you were an individual employee who was looking to file a petition, it was a bit like Goldilocks. You couldn't file when it was too hot or too cold. It had to be just right. And this is very difficult for an employee because employees are not always privy to what is occurring at the bargaining table and how far along they are in bargaining because those sessions can sometimes and often are confidential.

 

So in 2007, the Board recognizing these issues, changed its rules in a case called Dana. In Dana, the Board ruled the voluntary recognition bar would only continue if after recognition, the employer and union notify the NLRB regional office that a recognition has taken place. They would have to post a notice of recognition at the workplace to all the employees and tell them that there's now a 45-day window period in which an employee could file for an election.

 

If the employer never posted a notice, no recognition bar ever attached, an employee could file for an election to get rid of the union at any time after voluntary recognition. Dana only survived for about four years. It was quickly overturned by the Obama Board in a case called Lamons Gasket, which reestablished a full recognition bar.

 

And a Lamons Gasket rule stated that after voluntary recognition, the employer and the union would have a six-month bar that begins only after the first bargaining session. Then between six and twelve months, there would be a five-factor test to determine whether or not a reasonable time to bargain has passed.

 

That's where we were until today, until the proposed rule. And the underlying problem with the Board's recognition bar is it’s informational in nature. The flaw is the Board applies a bar to quash an employee's election petition, but the Board doesn't know if the employer-recognized union actually has an uncoerced supportive majority of employees.

 

Voluntary recognition is private. It's a concealed agreement between an employer and a union, and the Board's not party to recognition agreements. Sometimes the union may not have actually obtained a majority showing, but even where they have maintained a majority showing, the Board has no knowledge of the conditions under which those cards were procured from employees. They don’t know whether the cards were obtained through coercive means, taken by the employer, or whether employees had tried to revoke the cards and were not able to.

 

So in addition to not knowing whether an uncoerced majority of employees truly support employee-recognized unions, the Board has really compelling institutional and practical reasons not to defer to employer union claims because union authorization cards are obtained from employees under conditions that are far different and fall far short of the laboratory conditions that exist in the Board election.

 

And this point is critical because there's a host of activity that is outlawed during elections that are conducted by the NLRB that occur during almost every card check campaign. So for example, here are some of the things that are outlawed by the NLRB during a secret ballot election.

 

You cannot electioneer at the polling place. You can't have prolonged conversations with perspective voters in the polling area if you're a union or employer representative. You can't conduct electioneering among employees waiting in line to vote. There can't be speech-making or captive audience meetings within 24 hours of the election. You can't keep lists of employees who have voted as they go into the voting booth.

 

But similar conduct occurs at almost every card check campaign because the place where an employee finds the card is the functional equivalent to a polling place because it's where the employee makes his or her choice. When an employee refuses to sign or chooses to sign, they're not going to be alone.

 

So in sharp contrast, each employee participating in that NLRB conduction election makes his or her choice in private. There's no one with the employee at the time of the decision. The ultimate choice is that of the employee, and it's secret from both the union and the employer.

 

And once the employee has made their choice, the process is at an end and the secret ballot election provides far greater protections for employee free choice than a recognition campaign, which is why the Supreme Court has said consistently that elections are the gold standard, not voluntary recognition.

 

So based on these rationales, the Board proposed a rule that overturns Lamons Gasket and basically reinstitutes Dana with a few tweaks. So what are the arguments against reinstituting Dana?

 

The comments against the rule largely concentrated on three different arguments. First, they argued that the Dana process delays and undermines bargaining. The argument is that the union is the valid representative. The act favors bargaining, and the Dana rule can undermine bargaining in a voluntary relationship very shortly after its formation if the parties have to go out and engage in electioneering.

 

A problem with this argument is that it rests on the faulty assumption of the act's primary purpose. The act's primary purpose only supports employee free choice, and it only supports collective bargaining when an uncoerced majority of employees support union representation.

 

So barring election petitions after dubious voluntary recognition campaigns doesn’t facilitate lawful collective bargaining but only shields potential minority unions and destroys employees' Section 7 and Section 9 rights to have an election.

 

Moreover, under Dana, there was no proof that voluntary recognitions declined or that it became more difficult to negotiate under Dana. And frankly, a 45-day window period, in order to call for an election, is a very, very short time. Oftentimes, after a union is certified after an election or even after voluntary recognition, bargaining does not start within the first two months. So 45 days is a completely reasonable time in order to request an election under Dana.

 

Second, many of the commentators concentrated on the fact that Dana resulted in relatively few elections. During the four years of the Dana rule from 2007 to 2011, about 1,300 Dana notices were requested. 102 election petitions were filed, and only 62 elections were held. But in those 62 elections, the union lost 25 percent of the time. So when it was actually put to a vote, a card check with a 25 percent failure rate demonstrates that it is not always a reliable indicator of majority support.

 

And third, many of the commenters noted that the election was unnecessary because if there was something illegal about the voluntary recognition, a charge could be filed challenging the recognition.

 

The Board properly rejected these arguments because an election isn't necessarily meant to challenge the legal validity of a card check but to provide a referendum on the recognition through the act's preferred means of determining majority support.

 

And in addition, the ULP process is a crude replacement for an election because the general counsel holds complete discretion on whether or not to prosecute a charge. Even if employees bring a charge, there's no guarantee that such a charge will be litigated.

 

So in this way, the Board's rule that it announced reinstituting Dana comports nicely with its recent decision in Johnson Controls. In Johnson Controls, the Board ruled that after an employer anticipatorily withdraws recognition, that is after it receives a petition from a majority employees that they no longer want the union, the union has a window to file for a secret ballot election to prove it still represents a majority of the employees.

 

So the Board's new rule provides a mirror image to its recently announced rule in Johnson Controls. If employees don't trust the card check process, they can request for an election within the short window period. Similarly, if the union does not trust the withdrawal petition, they can request an election to prove they still represent the employees.

 

Finally, the Board's rule is not perfect. However, the NLRB's counsel, Peter Robb, filed comments which were supported by us that recommended that the Board modify the Dana rule to provide a longer period than 45 days to request an election. General Counsel Robb suggested up to a year to request an election.

 

In our experience, in the Foundation's experience, employees, especially those in larger bargaining units and those that include multiple locations, need far more time than 45 days to organize to collect the decertification petition. Individual employees often need longer because they don't have ready access to paid organizers like unions do or to counsel who can guide them through the NLRB's election process and the legal rules for collecting petition signatures.

 

And so we believe the general counsel was correct that a 45-day period does not give employees sufficient time to pursue their legal rights under the act. So hopefully, in the future rulemaking, the Board will lengthen the time to file petitions after an employer's voluntary recognition. But overall, the rule reinstituting Dana is a very good step forward.

 

And finally, we are to the last rule. Under the Board's new rule, positive evidence is needed to prove majority support to form a Section 9(a) relationship in the construction industry. Some background on what this means. Section 8(f) of the National Labor Relations Act allows a construction industry employer to enter into a collective bargaining agreement with unions even if those unions aren't supported by the majority of its employees.

 

But such agreements generally do not bar elections. This is due to the nature of the construction industry where employers need to know costs upfront so they can bid on projects. Under an 8(f) agreement, if employees want to have an election to get rid of the union or select another, generally, the agreement will not bar it.

 

This is different from the general rule under Section 9(a) under the majority rule where if a union and an employer enter into a collective bargaining agreement, it bars an election for up to the first three years of the agreement.

 

Well, unions want to become certified under Section 9(a). They want to have DBAs that bar elections and bar withdrawals after the contract ends. So what they do is they get the employer to agree to a contract that just unilaterally changes, I guess together changes, the relationship from Section 8(f) to Section 9(a). And in these agreements, they say we are the majority representative under Section 9(a), and we had a proof positive that the employees wanted us to be the majority representative.

 

And the problem with just declaring that you're the majority representative is that it's illegal under Section 9(a) for a union to be recognized unless it's actually supported by a majority. As the Supreme Court ruled in a case called Lady Garment Workers that there is no clear abridgement of the act and for an employer to recognize a minority union, even if that recognition is in good faith.

 

So undaunted by the Supreme Court's decision in the Lady Garment Workers, the Board has essentially ignored it in the construction industry. In a case called Staunton Fuel, the Board held that all that is required is contract language stating that the union was the majority representative or that it offered to prove that it was the majority representative. And that contract language would suffice to create a Section 9(a) agreement.

 

Now the Staunton Fuel test has been rejected twice by two different panels of the D.C. Circuit. And most recently in Colorado Fire Sprinkler, Judge Millett, an Obama appointee, correctly noted that the Staunton Fuel test was contrary to the act because the rule is under Section 9(a) that employees pick the union. The union does not pick the employees.

 

And so without evidence beyond a contract merely stating their majority, there's no valid Section 9(a) relationship. As to the argument that the contract language could establish a Section 9(a) relationship, the D.C. Circuit correctly noted that contract language doesn't always reflect reality and that allowing parties to just essentially write that there was majority without any positive proof would create a word game controlled entirely by the union and employer to the detriment of the employees, the ones who get to make that choice.

 

So and what happened in Colorado Fire Sprinkler actually proves that point. In that case, when the employer signed the contract that it was recognizing the union pursuant to Section 9(a), it had no employees even employed. So how could there be majority support with no employees?

 

So the Board's new rule overturns Staunton Fuel in the representation context. And so in order to block a petition from employees in the construction industry, an employer or union will now need to show positive evidence of majority support to bar any future election.

 

So what are the main arguments against the Board's rule? There was some comments filed that stated the Board was reading the case law wrong. For example, some commentators pointed out in a D.C. Circuit case called Nova Plumbing, the D.C. Circuit stated contract language and intent can sometimes be relevant.

 

But that's not quite the case because in that case, the court held contract language could be relevant when there's other evidence of majority support. As it said in Colorado Fire Sprinkler, the D.C. Circuit clearly rejected contract language alone suffices for a Section 9(a) agreement.

 

Member McFerran also claimed in her dissent to the notice of rulemaking that relying on Staunton Fuel is really solving an evidentiary problem because proof of majority support can be lost overtime. I don't think this is really a bug. I think this is a feature of the act. It's not hard to keep documents collected, and both parties certainly have an interest to do so.

 

And they should be required to keep something as important as a majority proof when you have this instance in the construction industry where unions can be recognized without majority support and then converted over. It's a very small requirement to bear.

 

And so finally, the Board decided that it would require positive evidence. And what is positive evidence? Generally, it's what is required for any other Section 9(a) recognition in any other industry, generally a card check or private election agreement. The Board recognized there could be other gray areas of what is positive evidence, but they left that for future boards to decide.

 

And so finally, the implementation of the rule. The rule was announced on April 1. It was supposed to be effective June 1, but the NLRB extended that last week to July 31. They extended the effective date from June 1 to July 31 because of COVID, stating they wanted employers, unions, and employees to concentrate on their work and not learn new rules.

 

I'm not completely sure why -- I understand why they did this at all. The NLRB is continuing to conduct elections after a short respite where for two weeks, they were not going to conduct any elections but then said they would on a case-by-case basis.

 

Employers, unions, employees are already asked to comply with many Board rules when their election petition's filed. These rules are not particularly complicated or burdensome to comply with. For example, the rule requiring positive evidence just requires the union and employer to keep evidence. It requires them to keep receipts of the check off cards that are signed.

 

These rules will likely be challenged by unions, and all this does is grant a future plaintiff a temporary injunction before the rules are even challenged in court. But overall, the NLRB's rules are a good step forward in protecting free choice. It ensures secret ballot elections to employees and ensure that minority unions are not representing employees which is the core purpose of the NLRA.

 

The purpose of the Act is employee free choice, and this ensures more secret ballot elections which is a good thing. So that concludes my talk, and I'm open to hearing any questions or comments.

 

Micah Wallen:  Wonderful. Let's go ahead and open up the floor for audience Q&A. We will now go to our first caller.

 

Caller 1:  Aaron, thank you for the presentation. My question relates to the 8(f) issue. If you have one of these 8(f) situations where there's an attempt to convert it to a 9(a) in the contract, does the new rule invalidate that contract? Or does it convert it back to an 8(f)? Or does it not do either of those things and just renders it incapable of barring an election?

 

Aaron Solem:  Thanks for the question. It doesn't treat the agreement as a 9(a) agreement that would bar an election.

 

Caller 1:  Right.

 

Aaron Solem:  So for purposes of receiving an election, it would be treated as an 8(f) agreement that would not bar any employee petitions that were filed.

 

Caller 1:  Yeah but from the employer's standpoint, could the employer say now this 9(a) deal is null and void? Or can it say at the end of this agreement, we just have an 8(f) and I can ignore the union at that point rather than having an ongoing 9(a) bargaining obligation?

 

Aaron Solem:  The Board's rule only applies to representation procedures. It doesn't -- it specifically says that it's not addressing any unfair labor practices that arise in this context. But I would have a hard time seeing how the Board could apply a different rule from within its regulations in the adjudicatory context of unfair labor practice acts.

 

      And so essentially, what I believe would occur is since it's an 8(f) agreement and generally the rule is under 8(f), at the end of the agreement, the employer is allowed to repudiate it. Now, the union could bring an unfair labor practice charge on that basis, then say hey, we actually had a 9(a) agreement. You can't just unilaterally repudiate it at the end of the agreement. And that will be litigated by the general counsel over whether or not Staunton should be overturned in the unfair labor practice context. Did that make sense?

 

Caller 1:  It does. It does. Thank you very much. I understand.

 

Micah Wallen:  Aaron, I wanted to ask you if there's any other circuit courts beside the D.C. Circuit that's ruled on this Staunton Fuel test and if the other circuits are in agreement or if anybody's chosen a different direction.

 

Aaron Solem:  Yeah. There actually is a split on the Staunton Fuel test. Both the Tenth Circuit and the Third Circuit have upheld Staunton Fuel. Neither decision in my opinion is a very strong decision because neither really concerns the Supreme Court. Another discusses the Supreme Court's decision in Lady Garment Workers that said 9(a) requires actual majority support. And both of those decisions were made prior to the D.C. Circuit's two excellent opinions in Nova Plumbing and Colorado Fire Sprinkler which refused to adopt the Staunton Fuel test.

 

      So there is a potential split that could someday reach the Supreme Court. But I don't think the two cases -- the one in the Tenth Circuit is called Triple C Maintenance. The one in the Third Circuit is called Sheet Metal Workers Local 19. I don't think either of those have the stronger argument.

 

Micah Wallen:  All right. We do have another question that popped into the queue, so we'll move to that caller now.

 

Caller 2:  Thank you for the presentation. I note that unions and their allies in Congress, like Bobby Scott and Patty Murray and all those congressmen and senators have condemned the rule and condemned Johnson Controls. And I think that the pro-act that they're pushing even wants to do away with voluntary -- with withdrawals of recognition. And so I'm wondering if you would comment on why they're so viscerally opposed to these rules if as you say, they just level the playing field between withdrawals of recognition and voluntary recognition.

 

Aaron Solem:  Thanks for the question. My general feeling is they're opposed to these types of rules because as you see time and time again in Congress, and they don't want to -- they want to put forward requirements that unions are not subject to secret ballot elections.

 

      As I discussed cards, they wanted to seek recognition through card check, which is far easier because in card check processes, unions can coerce or use subtle tactics that don't rise necessarily to the level of violating the -- to make an unfair labor practice but make it hard for an employee to say no.

 

      In addition, employees often are confused when they're signing authorization cards. And so all of these reasons make it easier to have card check recognitions versus secret ballot elections. The Supreme Court -- the Board has always said secret ballot elections are the best methods for determining majority support.

 

      And so in this way, the rule furthers that interest.

 

Caller 2:  So would you say that it's just hypocritical of these Congress people to be opposing cases like Johnson Control and be pushing the pro-act, at the same time they're trying to make it impossible to decertify?

 

Aaron Solem:  Well, right, right. So what's good for the goose is good for the gander, right? So if you can seek recognition through a card check where employees just sign cards and present them to an employee -- or to an employer and say recognize us, you should also be able to have employees who don't want the union utilize the same process and ask the employer to withdraw recognition. So allowing one and elevating one while outlawing the other is extremely unfair under the act -- extremely unfair.

 

Caller 2:  Thank you.

 

Micah Wallen:  Aaron, is there anything else you wanted to cover for us today?

 

Aaron Solem:  No, I don't think so, unless there's any other questions.

 

Micah Wallen:  And we do have another question that joined the queue, so we'll move to that next caller.

 

Caller 3:  Yes. Thanks for the presentation. You mentioned the voluntary recognition bar. I was just curious if you thought there are any other bars that should be eliminated by the NLRB.

 

Aaron Solem:  There's lots of them that could be eliminated. So for example, one that continually pops up is called the successor bar. The successor bar occurs when one business sells to another business and the successor bar essentially says that you can't have an election to get rid of your union when your company has been sold because it treats employees essentially like children, that they can't make up their mind just because the ownership has changed.

 

      Now that is a bar that has oscillated based on the partisan makeup of the Board. Generally, the Democratic administrations want to have the recognition bar. The Republican administrations want to get rid of the recognition bar.

 

      The Trump Board hasn't yet been presented with the successor bar. They haven't yet been presented with the opportunity in a case where they've acted on that. In addition, the contract bar is particularly perditious because it prevents an election from occurring for three years, and it's found nowhere in the statute.

 

      Now, what's interesting is at the beginning of the National Labor Relations Act, right after the Board was formed, there was no contract bar -- contract and bar and election. Then slowly, it became a one-year, then a two-year, then it settled on three-year. That's something that I wish the Board would push back on because three years is a long time to sacrifice employee free choice for stability.

 

Micah Wallen:  All right. Well, I believe we've reached the end of our queue for the day. So, Aaron, did you have any closing remarks?

 

Aaron Solem:  No, other than to say on the whole, the NLRB did protect employee free choice because the rules that it got rid of significantly undermine employee free choice by preventing elections from occurring.

 

Micah Wallen:  All right, and on behalf of The Federalist Society, I'd like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.